United States v. Schell

UNITED STATES, Appellant/Cross-Appellee

v.

Nicholas R. SCHELL, Sergeant
U.S. Army, Appellee/Cross-Appellant

No. 13-5001
Crim. App. No. 20110264

United States Court of Appeals for the Armed Forces

Argued April 15, 2013

Decided July 8, 2013

STUCKY, J., delivered the opinion of the Court, in which BAKER,
C.J., ERDMANN and RYAN, JJ., and EFFRON, S.J., joined.

Counsel

For Appellant/Cross-Appellee: Major Daniel D. Maurer (argued);
Lieutenant Colonel Amber J. Roach, Major Katherine S. Gowel, and
Captain Chad M. Fisher (on brief).

For Appellee/Cross-Appellant: Captain Brandon H. Iriye
(argued); Colonel Patricia A. Ham, Lieutenant Colonel Imogene M.
Jamison, and Major Jaired D. Stallard (on brief); Lieutenant
Colonel Jonathan F. Potter.

Military Judge: Susan K. Arnold

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Schell, No. 13-5001/AR

Judge STUCKY delivered the opinion of the Court.

The Judge Advocate General of the Army certified two issues

to this Court: (1) whether the United States Army Court of

Criminal Appeals (CCA) erred in holding that attempted

persuasion, inducement, or enticement of a minor to engage in

sexual activity under 18 U.S.C. § 2422(b) (2006), requires that

an accused “must intend that the minor, ultimately, actually

engage in illegal sexual activity as a result of his persuasion,

inducement, or enticement”; and (2) whether the accused’s

unsworn statement during sentencing that he “never intended to

do anything” with the minor was inconsistent with his guilty

plea. We also granted review of a related plea issue -- whether

the accused’s plea was improvident because the military judge

failed to discuss that an attempt under § 2422(b) requires a

substantial step toward the commission of the underlying

substantive offense.

We hold that the CCA erred in interpreting the intent

requirement of § 2422(b), and that the accused’s unsworn

statement was therefore consistent with his guilty plea.

However, we hold that the military judge’s failure to discuss

the substantial step requirement with the accused provides a

substantial basis in law to question his plea.

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I. Procedural History

Consistent with his pleas, Appellee/Cross-Appellant

(Schell) was convicted by a military judge sitting alone as a

general court-martial of one specification each of attempted

indecent language and attempted indecent acts in violation of

Article 80, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 880 (2006). He also pled guilty to and was convicted of one

specification of attempted persuasion, inducement, or enticement

of a minor to engage in sexual activity under § 2422(b),

pursuant to clause 3 of Article 134, UCMJ, 10 U.S.C. § 934

(2006). The military judge sentenced him to a bad-conduct

discharge, eighteen months of confinement, forfeiture of all pay

and allowances, and reduction to the lowest enlisted grade.

Pursuant to a pretrial agreement, the convening authority

reduced confinement to thirteen months but otherwise approved

the findings and sentence. The CCA set aside the findings of

guilty as to the § 2422(b) offense (Charge II and its

specification), and authorized a rehearing on Charge II and the

sentence, or a rehearing only on the sentence. United States v.

Schell, 71 M.J. 574, 582–83 (A. Ct. Crim. App. 2012) (en banc).

II. Background

A. Facts

In March 2010 Schell engaged in graphic Internet chats with

“Taylor” -- an individual Schell believed to be a fourteen-year-

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old girl, but who was actually a Johnson County, Kansas, police

detective. During the chats Schell asked “Taylor” about her

sexual history, discussed sexual intercourse with her, described

what he wanted to do with her sexually, asked if she would

participate in sexual activity with his girlfriend and him, and

suggested that her friends might also want to join in the sexual

activity. In order to entice “Taylor” to engage in sexual

activity with his girlfriend and him, Schell described his

girlfriend’s physical attributes and sexual tendencies. He also

sent “Taylor” photos of his erect penis hoping that she would

send him graphic photos in return.

After assurances from “Taylor” that they would not get in

trouble, Schell set up a time and place to meet with her for the

purpose of engaging in sexual activity. Schell later cancelled

the planned meeting, citing timing issues and his worry that his

girlfriend would get mad. He told “Taylor” “not tonight maybe

another day.” Although police waited several months for Schell

to reinitiate contact with “Taylor,” he never did.

B. Court-Martial

The Government charged the offense as follows:

Charge II: Violation of the UCMJ, Article 134

SPECIFICATION: In that [Schell], U.S. Army, did, at or
near Fort Leavenworth, Kansas, on or between 17 March
2010 and 18 March 2010, knowingly attempt to persuade,
induce or entice an individual known to him by the
screen name “joco_cheer_girl” and given name “Taylor

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Ackles,” a person [Schell] believed to be less than 18
years of age, by means or facility of interstate
commerce, to wit: the internet, to engage in sexual
activity which, if undertaken, would constitute a
criminal offense under Article 120 of the Uniform Code
of Military Justice, in violation of 18 U.S. Code
Section 2422(b) which conduct was of a nature to bring
discredit upon the armed forces.

At the plea inquiry, the military judge began by explaining the

elements of the two Article 80, UCMJ, specifications. First,

the military judge defined the elements of indecent language,

and informed Schell that in order to commit the offense of

attempted indecent language under Article 80, UCMJ, his conduct

would have to amount to more than mere preparation -- that he

would have had to take a substantial step toward the commission

of the intended offense. The military judge defined

“preparation” and “substantial step.” The military judge then

turned to the attempted indecent acts specification and

described the elements of the offense. The military judge

defined “preparation” again, but Schell declined the military

judge’s offer to repeat the definition of “substantial step” for

this offense.

For the Article 134, UCMJ, enticement charge, the military

judge listed the elements as: (1) “[Schell] knowingly attempted

to persuade, induce, or entice” “Taylor” believing that she was

under eighteen years of age; (2) “which if undertaken would

constitute a criminal offense under Article 120 of the Uniform

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Code of Military Justice” and § 2422(b); (3) “by means of or a

facility of interstate commerce, in this case the internet”; and

(4) which under the circumstances “was of a nature to bring

discredit upon the armed forces.” The military judge did not

inform Schell that in order to constitute an attempt under

§ 2422(b), he would have had to take a substantial step toward

the commission of the underlying offense. Both parties

indicated that they had no issues with the elements or

definitions given by the military judge.

Schell stated he was guilty of the enticement offense

because the messages and photos were “steps” to persuade

“Taylor” to engage in sexual acts with him and possibly other

individuals. He agreed that the Internet is a means of

interstate commerce, and admitted that his conduct would have

constituted an offense under Article 120, UCMJ, if “Taylor” had

been a fourteen-year-old girl and he had engaged in sexual

activity with her. He also agreed that his conduct violated

§ 2422(b). Finally, he agreed that his conduct was service

discrediting because it would harm the reputation of the

military. Neither side believed any further inquiry into

Schell’s conduct was required. The military judge found Schell

guilty of all three specifications.

During sentencing, defense counsel pointed out that Schell

never left Fort Leavenworth to meet “Taylor,” and that Schell

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never actually intended to meet with “Taylor” or initiated

contact with her after he told her he was not coming to her

house. In his unsworn statement, Schell echoed that he never

actually intended to act on their discussions. Based upon

Schell and defense counsel’s sentencing arguments, the military

judge said it was probably “prudent” to ensure that Schell and

his counsel understood that the enticement offense was complete,

even if Schell did not leave Fort Leavenworth to meet with

“Taylor.” Schell’s counsel agreed that the offense was complete

-- “there is case law that does not require a substantial step

moving forward to actually commit the offense for which he was

enticing for, just that he intended to entice them to commit the

offense.” The Government and Schell agreed.

C. CCA Opinion

The CCA specified three issues, including whether Schell

raised a matter inconsistent with his plea during his unsworn

statement. Schell, 71 M.J. at 575. Schell also filed a

supplemental assignment of error asserting that the military

judge failed to sufficiently discuss the substantial step

requirement for the enticement offense. Id.

A divided court, en banc, set aside the enticement offense,

holding “that the intent element of attempted persuasion,

inducement, or enticement requires the accused intend to

actually persuade, induce, or entice a minor to actually engage

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in illegal sexual activity.” Id. at 578–79. In reaching this

holding, the majority heavily relied on the legislative history

of § 2422(b) reasoning that the statute was intended to address

individuals “who lure children out to actually engage in illegal

sexual activity” as opposed to those “who simply encourage or

incite children to assent to the possibility of illegal sex.”

Id. at 579. The majority concluded “that appellant’s unsworn

statements made during the sentencing phase of his court-

martial, denying that he ever had any intent to do anything with

the minor, set up matter inconsistent with his plea requiring

disapproval of that finding of guilty in this case.” Id. The

majority did not reach the substantial step providency issue.

The dissenting judges argued that the majority’s reasoning

was contrary to the plain language of the statute, and proposed

adopting the federal circuits’ approach to interpreting

§ 2422(b) -- “[we] ‘reject the . . . thesis that section 2422(b)

should be interpreted to include, as an additional element of

the offense, an intent that the underlying sexual activity

actually take place.’” Id. at 583–84 (Haight, J., joined by

Ayres, C.J., Cook, S.J., and Gallagher, J., dissenting) (quoting

United States v. Dwinells, 508 F.3d 63, 65 (1st Cir. 2007)).

They also argued that this Court’s precedent supported their

interpretation. Id. at 584–85 (citing United States v. Brooks,

60 M.J. 495, 498 (C.A.A.F. 2005); United States v. Winckelmann,

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70 M.J. 403, 407 n.4 (C.A.A.F. 2011); United States v. Garner,

67 M.J. 734, 738 (N-M. Ct. Crim. App. 2009), aff’d, 69 M.J. 31

(C.A.A.F. 2010)). Under their interpretation of the intent

requirement, the dissenting judges believed that the conviction

should stand because Schell admitted intending to entice

“Taylor,” and his unsworn statement only contradicted whether he

intended to actually engage in sex with her, not whether he

intended to entice her. Id. at 585.

III. Certified Issue I

A. The Law

This Court reviews questions of law arising from a guilty

plea de novo. United States v. Inabinette, 66 M.J. 320, 322

(C.A.A.F. 2008).

18 U.S.C. § 2422(b) reads:

Whoever, using the mail or any facility or means of
interstate or foreign commerce, or within the special
maritime and territorial jurisdiction of the United
States knowingly persuades, induces, entices, or
coerces any individual who has not attained the age of
18 years, to engage in prostitution or any sexual
activity for which any person can be charged with a
criminal offense, or attempts to do so, shall be fined
under this title and imprisoned not less than 10 years
or for life.

Unless the text of a statute is ambiguous, “the plain

language of a statute will control unless it leads to an absurd

result.” United States v. King, 71 M.J. 50, 52 (C.A.A.F. 2012);

see also United States v. McCollum, 58 M.J. 323, 340 (C.A.A.F.

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2003) (“In construing the language of a statute or rule, it is

generally understood that the words should be given their common

and approved usage.” (citation and internal quotation marks

omitted)).

B. Parties’ Arguments

The Government argues that § 2422(b) is unambiguous and

therefore the CCA incorrectly relied on legislative history to

interpret the statute. It also argues that the CCA opinion is

inconsistent with this Court’s precedent, and contradicts well-

settled uniformity among the federal circuits.

Schell’s arguments mirror the CCA opinion. First, he

argues the plain language of the statute requires that an

accused must have a specific intent to have the minor actually

engage in illegal sexual activity.

Second, he argues that the legislative history of § 2422(b)

supports the CCA’s interpretation. In drafting § 2422(b)

Congress contemplated, but decided against, prohibiting contact

or attempts to contact minors via the Internet for the purposes

of engaging in sexual activity -- the “contact amendment.” H.R.

Rep. No. 105–557, at 687 (1998). Schell argues Congress

rejected the contact amendment because it would have essentially

created a thought crime. Schell equates the Government’s

interpretation of § 2422(b) with the failed contact amendment

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and urges this Court to follow Congress’s lead and reject the

Government’s interpretation.

Third, Schell believes that the CCA’s opinion is not

inconsistent with this Court’s Winckelmann, Brooks, and Garner

opinions because those opinions did not explicitly address

§ 2422(b)’s intent requirement.

Finally, Schell downplays the uniformity of the federal

circuits on this issue. He argues that the law encompassing the

intent requirement continues to evolve in the federal circuits,

and points out that at least one federal circuit has recently

adopted the same intent requirement as the CCA. See United

States v. Lebowitz, 676 F.3d 1000, 1013 (11th Cir. 2012) (“the

Government [must] prove beyond a reasonable doubt that Lebowitz

intended to engage in criminal sexual activity with [a minor]”).

C. Analysis

As a threshold matter, we believe that the plain language

of § 2422(b) is unambiguous. 1 Contrary to the CCA’s holding,

1
The terms “entice,” “induce,” and “persuade” are not
statutorily defined. Therefore we accord them their ordinary
meaning. United States v. Falk, 50 M.J. 385, 390 (C.A.A.F.
1999). In ordinary usage, they are effectively synonymous --
“‘the idea conveyed is of one person leading or moving another
by persuasion or influence, as to some action [or] state of
mind.’” United States v. Engle, 676 F.3d 405, 411 n.3 (4th Cir.
2012) (alteration in original) (quoting United States v.
Broxmeyer, 616 F.3d 120, 125 (2d Cir. 2010)); see also Black’s
Law Dictionary 611, 845, 1260 (9th ed. 2009) (defining “entice”
as “[t]o lure or induce; esp., to wrongfully solicit (a person)
to do something”; “inducement” as “[t]he act or process of
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nothing in the plain language of § 2422(b) indicates that an

accused must “intend to actually persuade, induce, or entice a

minor to actually engage in illegal sexual activity.” Compare

Schell 71 M.J. at 578–79 (emphasis added), with 18 U.S.C.

§ 2422(b) (2006).

Even if we were to view § 2422(b) as ambiguous, Schell’s

characterization of the legislative history is unpersuasive.

The legislative history indicates that Congress intended the

statute “to address those who lure children out to actually

engage in illegal sexual activity,” Schell, 71 M.J. at 579, but

also to more broadly “protect children and families from online

harm.” H.R. Rep. No. 104-458 (1996); H.R. Rep. No. 104-652, §

508, at 1130 (1996) (Conf. Rep.). There is nothing in the

legislative history suggesting that an accused had to intend to

actually engage in a sexual crime. H.R. Rep. No. 104-652, §

508, at 1130 (“Section 508 would amend [§ 2422(b)] to prohibit

the use of a facility of interstate commerce . . . for the

purpose of luring, enticing or coercing a minor into

prostitution or a sexual crime for which a person could be held

criminally liable, or attempt to do so.”).

Furthermore, we do not find Schell’s reliance on the failed

contact amendment compelling. See United States v. Craft, 535

enticing or persuading another person to take a certain course
of action”; and “persuade” as “induc[ing] (another) to do
something”).
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U.S. 274, 287 (2002) (“Failed legislative proposals are ‘a

particularly dangerous ground on which to rest an interpretation

of a prior statute.’” (citation omitted)). To establish an

attempt under § 2422(b), we have held that the Government must

prove that an accused: (1) had the intent to commit the

substantive offense; and (2) took a substantial step toward

persuading, inducing, enticing or coercing a minor to engage in

illegal sexual activity. Brooks, 60 M.J. at 498–99;

Winckelmann, 70 M.J. at 407; see also Manual for Courts-Martial,

United States (MCM) pt. IV, paras. 4.a.(a), 4.c.(1) (2008 ed.). 2

This second element -- the substantial step requirement --

ensures that mere thought crimes are not prosecuted.

Schell is correct that this Court has not directly

addressed the intent requirement of § 2422(b). However, the

opinions in Winckelmann, Brooks, and Garner support the

Government’s interpretation of § 2422(b). See Winckelmann, 70

M.J. at 407 n.4 (addressing what constitutes a substantial step

under § 2422(b) and noting that “the military judge incorrectly

instructed the members that the substantial step must be toward

2
Other federal circuits require the same for an attempt under §
2422(b). See, e.g., United States v. Murrell, 368 F.3d 1283,
1286 (11th Cir. 2004) (“[T]he government need only prove (1)
that the defendant had the specific intent to engage in the
criminal conduct for which he is charged and (2) that he took a
substantial step toward commission of the offense.”); United
States v. Young, 613 F.3d 735, 742 (8th Cir. 2010); United
States v. Barlow, 568 F.3d 215, 219 (5th Cir. 2009); United
States v. Brand, 467 F.3d 179, 202 (2d Cir. 2006).
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actually engaging in sexual activity rather than a substantial

step towards enticement alone”); Brooks, 60 M.J. at 498 (citing

federal circuit precedent indicating “that a conviction under

§ 2422(b) does not require a defendant to attempt an actual

sexual act”); Garner, 67 M.J. at 738 (“an accused need not

intend that the underlying sexual activity actually take place

but only that the accused intend[ed] to persuade a minor to

engage in such activity), aff’d, 69 M.J. 31, 33 (C.A.A.F. 2010)

(affirming a § 2422(b) conviction on the grounds that the record

contained the required guilty plea admissions by the accused).

Additionally, although not binding on this Court, nearly

every federal circuit disagrees with the CCA’s interpretation of

§ 2422(b)’s intent requirement. See, e.g., United States v.

Berk, 652 F.3d 132, 140 (1st Cir. 2011); United States v.

Douglas, 626 F.3d 161, 164 (2d Cir. 2010); United States v.

Nestor, 574 F.3d. 159, 161–62 (3d Cir. 2009); United States v.

Engle, 676 F.3d 405, 419 (4th Cir. 2012); United States v.

Broussard, 669 F.3d 537, 548 (5th Cir. 2012); United States v.

Hart, 635 F.3d 850, 854 (6th Cir. 2011); United States v. Berg,

640 F.3d 239, 251 (7th Cir. 2011); United States v. Pierson, 544

F.3d 933, 939 (8th Cir. 2008); United States v. Hofus, 598 F.3d

1171, 1178–79 (9th Cir. 2010); United States v. Lee, 603 F.3d

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904, 914 (11th Cir. 2010). 3 These cases span a broad range of

procedural postures and fact patterns, and the Supreme Court has

not seen fit to question the federal circuits’ interpretation of

§ 2422(b), nor does there appear to be a trend among the federal

circuits towards the CCA’s interpretation. Therefore, we find

no reason to depart from this Court’s precedent or established

federal practice.

The plain language of the statute, this Court’s precedent,

and federal circuit precedent support the Government’s

interpretation of § 2422(b)’s intent requirement. The CCA erred

in holding that “the accused must intend that the minor,

ultimately, actually engage in illegal sexual activity as a

result of his persuasion, inducement, or enticement.” Schell,

71 M.J. at 578. Rather, the intent required to support an

attempt conviction under § 2422(b) is the intent to commit the

predicate offense -- that is, the intent to persuade, induce,

entice, or coerce a minor for the purposes of engaging in

illegal sexual activity.

3
The United States Court of Appeals for the Eleventh Circuit has
wavered slightly on this issue. See Lebowitz, 676 F.3d at 1013
(“the Government [must] prove beyond a reasonable doubt that
Lebowitz intended to engage in criminal sexual activity with
K.S.”). However, it appears that Lebowitz may just be an
outlier. See United States v. Slaughter, 708 F.3d 1208, 1215
(11th Cir. 2013) (indicating that § 2422(b) is intended to
“criminalize enticement and attempted enticement of an
individual under the age of eighteen years”).
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IV. Certified Issue II

“If an accused sets up matter inconsistent with the plea at

any time during the proceeding, the military judge must either

resolve the apparent inconsistency or reject the plea.” United

States v. Phillippe, 63 M.J. 307, 309 (C.A.A.F. 2005) (quoting

United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996))

(internal quotation marks omitted); Article 45(a), UCMJ,

10 U.S.C. § 845(a) (2006). A military judge abuses his

discretion if he neglects or chooses not to resolve an

inconsistency or reject the inconsistent or irregular pleading.

United States v. Hayes, 70 M.J. 454, 457–58 (C.A.A.F. 2012).

Schell argues that trial defense counsel’s statements

during sentencing that he did not actually intend to engage in

sexual activity with “Taylor,” and his unsworn statement that he

“never intended to do anything” with her raised a matter

inconsistent with his plea that the military judge left

unresolved. This argument is unavailing given our holding on

Certified Issue I.

Even if Schell did not actually intend to engage in illegal

sexual activity with “Taylor,” he admitted in a detailed

stipulation of fact and during the plea colloquy that he

intended to entice her to engage in illegal sexual activity.

Therefore, Schell admitted that he had the requisite intent to

support an attempt conviction under § 2422(b), and neither trial

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defense counsel’s statements nor Schell’s unsworn statement

raised a matter inconsistent with his plea. See Schell, 71 M.J.

at 583 (Haight, J., joined by Ayres, C.J., Cook, S.J., and

Gallagher, J., dissenting) (“[a] stated lack of intent to engage

in sexual activity is not inconsistent with the intent to entice

to engage in sexual activity”).

V. Granted Issue

A.

A military judge’s acceptance of an accused’s guilty plea

is reviewed for an abuse of discretion. Inabinette, 66 M.J. at

322. The test for an abuse of discretion is whether the record

shows a substantial basis in law or fact for questioning the

plea. Id. “For this Court to find a plea of guilty to be

knowing and voluntary, the record of trial ‘must reflect’ that

the elements of ‘each offense charged have been explained to the

accused’ by the military judge.” United States v. Redlinski, 58

M.J. 117, 119 (C.A.A.F. 2003) (quoting United States v. Care, 18

C.M.A. 535, 541, 40 C.M.R. 247 (1969)); see also Article 45,

UCMJ; Rule for Courts-Martial 910(c)(1). If the military judge

fails to explain the elements to an accused, it is reversible

error unless “it is clear from the entire record that the

accused knew the elements, admitted them freely, and pleaded

guilty because he was guilty.” United States v. Jones, 34 M.J.

270, 272 (C.M.A. 1992). “Rather than focusing on a technical

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listing of the elements of an offense, this Court looks at the

context of the entire record to determine whether an accused is

aware of the elements, either explicitly or inferentially.”

Redlinski, 58 M.J. at 119.

“Unlike some simple military offenses, attempt is a more

complex, inchoate offense that includes two specific elements

designed to distinguish it from mere preparation.” Id. To

establish an attempt under § 2422(b), this Court has held that

the Government must prove that the accused: (1) had the intent

to commit the substantive offense, and (2) took a substantial

step toward persuading, inducing, enticing, or coercing a minor

to engage in illegal sexual activity. Winckelmann, 70 M.J. at

407.

B.

In defining the elements of the Article 134, UCMJ, offense

the military judge erred because she failed to instruct Schell

that he had to take a substantial step toward persuading,

inducing, enticing, or coercing a minor in order to plead guilty

to an attempt under Article 134, UCMJ. Additionally, neither

the specification nor the stipulation of fact mentioned that a

“substantial step” was an element of the Article 134, UCMJ,

offense.

The fact that the military judge instructed on and defined

“substantial step” for the Article 80, UCMJ, offenses does not

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cure this error. There is nothing in the record to indicate

that Schell understood that the Article 134, UCMJ, offense

shared the “substantial step” element with the Article 80, UCMJ,

offenses. The military judge did not discuss the element with

respect to the Article 134, UCMJ, charge, nor cross-reference

the element with the Article 80, UCMJ, attempt offenses. See

United States v. Barton, 60 M.J. 62, 63–65 (C.A.A.F. 2004)

(recognizing that cross-referencing an element of separate

offenses during a plea colloquy may not amount to error).

Schell was “not entitled to receive a hornbook review of

the distinction” between mere preparation and a substantial

step, but “the record must objectively reflect that [he]

understood that his conduct, in order to be criminal, needed to

go beyond preparatory steps and be a direct movement toward the

commission of the intended offense.” Redlinski, 58 M.J. at 119.

That Schell admitted facts during his plea colloquy that are

likely sufficient to prove that he took a substantial step

towards enticing “Taylor,” does not answer the altogether

different question whether he understood that a substantial step

was necessary to make his conduct criminal. Even though Schell

agreed that the military judge correctly described his crime,

and admitted that he took “steps” to attempt to persuade

“Taylor,” the record before us does not demonstrate that Schell

understood how the law related to the facts. United States v.

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Medina, 66 M.J. 21, 26 (C.A.A.F. 2008). Therefore, we set aside

Schell’s guilty plea to the Article 134, UCMJ, offense because

there is a substantial basis in law to question the providence

of his plea.

VI.

We reject the reasoning of the United States Army Court of

Criminal Appeals as to the certified issues, but affirm the

judgment of that court because there is a substantial basis in

law to question Schell’s plea.

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